Malpractice Arbitration in Hazy Territory; You've Probably Signed One; State High Court Must Decide If Agreement to Settle Is Legal

Dixon, Matt, The Florida Times Union

Byline: Matt Dixon

TALLAHASSEE | Most people have been there. You go to the doctor's office, and are promptly greeted with a stack of paperwork to fill out.

In many cases, that stack will include what's called an arbitration agreement. It's a contract that limits the right to a jury trial and limits damages if issues of potential medical malpractice arise.

The agreements have been both political and legal footballs in Florida.

Opponents say patients often do not understand what they are signing, or what rights they are giving up. Backers argue the agreements are legal contracts needed to cut down on medical malpractice costs.

Jacksonville resident Joseph Franks, 67, was handed four pages termed a "financial agreement" when he went to North Florida Surgeons in 2008. He signed the packet, which included an arbitration agreement on Page 2.

He later died after complications from hernia surgery. His wife sued, and after two lower courts ruled in favor of North Florida Surgeons the case is now before the Florida Supreme Court.

Underlying the specifics of the case is the legality of the agreements. Many health care providers already use them, but Florida law is murky on the issue.

Once an arbitration agreement is signed, whether patients know it or not, they have agreed to settle any medical malpractice issues with an arbitration panel, not in court. Under state law, when a medical provider agrees to arbitration he or she must admit liability, which can be one of the most expensive things to prove during a jury trial.

In return for being spared that expense, a patient's potential quality-of-life-related damages are capped at $250,000. Under the North Florida Surgeon's agreement, the $250,000 cap is in place, but during arbitration a patient must still prove a doctor was liable.

"If you are not going to admit liability, that's going to eat up the $250,000 ... even if you prevail," said Justice James Perry during oral arguments last week.

Kelly Mathis, an attorney for the surgeons group, said proving that a health care provider is liable should be a part of receiving damages.

"The patient has no right for the doctor to admit liability," he told the court. …

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